Legislative Memo: Prohibits Possession of Certain Condoms as Evidence

This bill proposes to amend New York State’s civil practice law and rules and criminal procedure law to prohibit prosecutors from introducing the possession of condoms as evidence of prostitution and prostitution-related offenses.

The NYCLU believes that existing law, which could permit the introduction of condom possession as evidence in such prosecutions, is contrary to a sound public health policy; by allowing the possession of condoms to be used as evidence of prostitution and related offenses, the current law undermines New York’s efforts to combat sexually transmitted infections and diseases and to educate the public about the use of contraceptives. The NYCLU therefore strongly urges the passage of this bill.

The existing state of the law undermines the consistent efforts of city and state agencies to promote safer sex practices, particularly in places such as New York City. Since 1971, New York City has distributed free condoms to its public in order to combat the transmission of sexually-transmitted infections and diseases and promote safer sex practices. New York City bolstered these efforts in 2007 when it began the NYC Condom campaign, which dramatically increased free condom distribution and awareness throughout its five boroughs.

In fact, the city has its own city-themed condom, and likely hundreds of thousands of residents and tourists carry these decoratively designed condoms in their pockets – as a representative souvenir of New York City, and to be able to engage in safer sex practices. In 2007 alone, the city’s Health Department distributed over 36 million of these New York City condoms, making them ubiquitous items throughout the city.

Allowing prosecutors to use condom possession as evidence undermines this monumental public health campaign. The existing law also puts the population at greater risk of acquiring sexually-transmitted infections and diseases. Even as New York City increases its efforts to encourage safer sex practices, sex workers and individuals who have been profiled by police as being sex workers have become increasingly terrified of carrying any form of contraception or sexually-transmitted infection prevention tool because they fear the legal ramifications of doing so.

Punishing possession in this manner effectively discourages the possession, and thus, use of condoms, thereby greatly jeopardizing the overall public welfare. Furthermore, the existing law puts persons who carry condoms, including New York City condoms, at further risk of criminal suspicion. Because condoms can be used as evidence of criminal activity, police officers may be more likely to arrest someone upon finding a condom than if a condom had not been found – even though they are lawful and commonly carried items.

The possession and use of condoms should be promoted, not punished. This legislation will help give effect to the important city and state-wide campaigns to promote safer sex practices, while also ensuring that the efforts expended in these campaigns are not compromised or undermined. More importantly, this legislation will promote the public welfare by removing the stigma that is currently placed on condom possession. For these reasons, we strongly encourage New York State’s legislators to pass S.1289-A/ A.10893.

1. As part of its effort to help New York City practice safer sex, in March 2010, the New York City Department of Health and Mental Hygiene declared a winner in its 2009-2010 wrapper design contest. The winning design, which was selected through online ballots, will be featured as special limited-edition New York City Condoms, as the city continues its efforts to widely distribute condoms.